Pittman v. McKinney

Full title: PITTMAN v. McKINNEY

Court: Court of Appeals of Georgia

Date published: Jun 18, 1975

135 Ga. App. 192 (Ga. Ct. App. 1975)

217 S.E.2d 446

Opinion

50723.

ARGUED JUNE 2, 1975.

DECIDED JUNE 18, 1975.

Action for damages. Fulton Civil Court. Before Judge Moran.

Richard K. Greenstein, for appellant.

Cobb, Blandford Werbin, Samuel N. Werbin, for appellee.

WEBB, Judge.

1. The Civil Practice Act governs the procedure "in all courts of record..." CPA § 1 (Code Ann. § 81A-101).

2. In cases involving more than $300, the Civil Court of Fulton County is a court of record. Cole v. Cates, 113 Ga. App. 540, 542 (1) ( 149 S.E.2d 165); Estes Heating c. Co. v. McGuire, 113 Ga. App. 800 (1) ( 149 S.E.2d 831); Lymon v. Hollywood Fashions, Inc., 126 Ga. App. 627, 628 (1) ( 191 S.E.2d 473).

3. Where a provision of a special Act establishing a court of record conflicts with a provision of the Civil Practice Act, the latter controls. Gresham v. Symmers, 227 Ga. 616 (2, 3) ( 182 S.E.2d 764); Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171 ( 176 S.E.2d 604); Crosby v. Dixie Metal Co., 124 Ga. App. 169 ( 183 S.E.2d 59); Lee v. G.A.C. Finance Corp., 130 Ga. App. 44 ( 202 S.E.2d 221); National Health Services v. Townsend, 130 Ga. App. 700

(204 S.E.2d 299); Pate v. Milford A. Scott Real Estate Co., 132 Ga. App. 49 ( 207 S.E.2d 567); Yeargin v. Burleson, 132 Ga. App. 652 ( 209 S.E.2d 99) and cits.

4. CPA § 55 (a) (Code Ann. § 81A-155 (a)) and Rule 10 of the Rules of the Civil Court of Fulton County require that damages be proved before a jury in actions ex delicto which are in default. Ga. L. 1913, pp. 145, 165, § 39, as amended, providing that a defendant who fails to demand a jury trial in the Civil Court of Fulton County on or before the appearance day is deemed to have waived a jury trial, is inconsistent with CPA § 55 (a) and must yield thereto. Since the record here shows on its face that the default judgment on plaintiff's ex delicto claim was entered without damages having been proved before a jury, the judgment is void on its face and the trial court erred in denying defendant's motion to vacate that judgment.

Centennial Equities Corp. v. Hollis, 132 Ga. App. 44 ( 207 S.E.2d 573) does not require a different result, since it was there stipulated that the in personam (money) judgment taken by default was void, leaving only a special lien upon the property by default.

Judgment reversed. Bell, C.J., and Marshall, J., concur.

WEBB, Judge.

ARGUED JUNE 2, 1975 — DECIDED JUNE 18, 1975.